CRI/APN/122/2000

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

REX

V

THAPELO
MORATHA 1st Accused

REMAKETSE
RASETHUNTSA 2nd Accused

THEBE
MATJOBA MONARE 3rd Accused

'MAMOTSEARE
MORATHA 4th Accused

For the
Crown : Miss Mofilikoane

For the
Accused : Mr Monyako

JUDGMENT

Delivered
by the Honourable Mr. Justice T Monapathi On the 2nd Day of April,
2004

The three
Accused persons namely Thapelo Moratha (Al), Remaketse Rasethuntsa
(A2) and Thebe Matjoba Monare (A3) remained charged
with Murder,
Robbery and contravention of section 3(1), 3(2) and 3(3) of Internal
Security Act 17/1966 (as amended). The said Accused
all pleaded not
guilty together with Mamotseare Moratha (A4) who was discharged at
the end of the trial.

2

In the
picture is also the fact that at the end of the Crown case, Defence
Counsel applied for discharge of all Accused in terms
of section
175(3) of the Criminal Procedure and Evidence Act No.9 of 1981. The
Crown opposed. The application was refused.

The said
Accused all pleaded not guilty (as aforesaid) together with
Mamotseare Rasethuntsa (A4) who was discharged at the end of
the
trial. Originally six Accused were charged and this included one
Lejota Monyetsane who is still at large and Tankiso Suping
who has
since died. The Crown led the evidence of thirteen witnesses in all.
Four Accused including A4 put in evidence in their
own defence.

The
Deceased who died in the process of a robbery Mrs Thoko Priscilla
Maphalala Makae, was a widow and a businesswoman and was allegedly

killed around the night of the "28th July 1998 and at or near Ha
Matala in the district of Maseru; "the said Accused
acting in
concert one or the other, or all of them". Deceased suffered a
perforating gun shot wound on the chest which was
fatal. See the
testimony of Sgt. Ntili (Pw8) and Post-mortem Report Exhibit "B".
The report was admitted by consent.
Deceased had been with a friend
(PW4) during that night. PW 4 can safely be described as fat and
large of stature, girth and all.

Only
after the killing and robbery of quantities of clothing and other
items was the Deceased's neighbour (PW 1) alerted by PW 4.
PW 4 had
been badly assaulted by three of the intruders who the Crown sought
to prove that it was these Accused or some of them.
PW 4 had then
been a senior police officer and had not then retired.

3

About
twenty nine items were exhibited out of about seventy items
originally listed. The explanation regarding some of the items
was
that they were released to the relatives of the Deceased because they
were useful household goods that they needed. See the
testimony of Pw
l2 Det/Sgt Ralebea who also took all or some these items seized from
Al and A4 to the clerk of Court for authority
to keep the items until
trial date. As it was remarkably so the whole of Deceased's house had
been almost emptied of clothing,
kitchen utensils, bedding, linens
and other sundries. The bulk of personal clothing was found with
Thapelo Moratha (Al) who was
cohabiting with Mamotsoane Moratha (A4)
as this was the unchallenged evidence. I would refer furthermore in
this regard to the
evidence of A4 in her defence.

As will
be shown hereafter coincidence led to A4 being found with Deceased's
clothing. Investigations followed and the whole story
unravelled.
That the goods were found in their possession was never denied by Al
and A4. Incidentally about twelve items had also
been identified by
PW 4 before this as having belonged to the Deceased.

Not until
their evidence in defence did Al nor A4 give any suggestion as to how
they came into possession of the goods found by
police. But in
fairness to A4 I noted that at Lithabaneng at her sister's place she
made a statement in which she explained how
she had come into
possession of the stolen goods. In this she implicated Al. As to A4's
association with Al, A4's sister expressed
open distaste according to
PW 9. As an explanation as to how the Accused came into possession of
the goods it was significant in
my opinion, that it was never put to
any of the Crown witnesses. See the case of Rex v Mota Phaloane
1980(2) LLR 260 The Crown

4

sought to
prove that since the Accused had recently come into possession of the
goods when they were found necessary inferences
would have to be
made.

The first
witness PW 1 was Monare Thulo. He testified that on the 28 July 1998
in the early morning hours he had been asleep at
his home. He heard a
fast movement of his neighbour's (Deceased) car outside. He later
discovered that it had been on its way out.
Immediately thereafter,
he heard Mr. Tsabo Ngatane (PW 4) calling out his name and he was
asking for assistance. The witness went
outside and found PW 4 naked
with his hands tied with a piece of cloth. PW 4 reacted to the
witness what had led to the condition
in which he was found which was
a result of assault including the death of the Deceased through
gunshot. Deceased lay dead in her
house. The witness and Pw1
inspected the whole scene of the crime which took place in the
Deceased's house. From there they went
to report at the police Charge
Office. The witness was a truthful witness in all respects and to the
extent that his evidence was
corroborated by Pw4.

The
second witness PW 2 was Manamane Namane. She had not known any of the
Accused before Court. She testified further that in 1998
while she
was still working at Three Sisters Restaurant, which was owned by the
Deceased, one Paballo Moletsane paid her a visit.
During this visit
he asked the witness several times where the witness worked. The
witness asked Paballo why he wanted to know
her work place. Four days
later Paballo came to the witness once again and told the witness
that he had been arrested by Lithoteng
police as a result of having
shot a police officer to death at Ha Seoli. The significance of this
witness' evidence is in that
a chain or a link is identified between
the said Paballo Moletsane in the testimony of the following

5

witness
as to what motive (as alleged) was behind to the crimes charged. The
witness was not cross-examined. I believed her evidence
and to the
extent that it shed light to the existence of a motive and something
just short of a plan.

The third
witness was PW 3 one Tholang Tlebere. He was an accomplice witness.
Paballo Moletsane was the witness' friend as he testified.
In June
1998, he met the said Paballo who asked him whether he owned a radio
set or not. Paballo then promised the witness that
he would secure
for him a radio set with speakers. He promised further that the radio
would be procured from Deceased's place at
Ha Matala during the day
when Deceased would be at work. Later A2 was said to have joined the
scheme to have a radio set and speakers
stolen. On a few occasions A2
came to the witness together with Al and A3.

During
one night as appointed or agreed PW 3 said further that the gentlemen
went to Ha Matala where they approached Deceased's
premises with Al,
A2 and A3 Tankiso Suping (who was at large at time of trial) and
Lejota Moletsane (who had since died). Before
they could enter the
premises they saw a fat man coming out of the Deceased's house. As a
result of seeing the presence of the
fat man the witness and Paballo
ran away and did not return to the scene. It cannot have been a mere
coincidence that these premises
were later broken into by the witness
companions. About the identification of the premises there was no
dispute that those were
the premises which were later broken into on
the fateful day. According to Senior Inspector Baholo (Pw9) the
security fence was
punctured to allow entry and the sitting room door
was broken. This must have been the way the intruders entered.

6

PW 3
testified further to say that a few days later he met A2 at Lefikeng
in the Lithabaneng area outside Maseru. A2 was then selling
a
cellular phone at the price of M100.00. A2 also promised to sell a
radio cassette to PW 3. The following day PW 3 went to A2's
place
where he was borrowed a CD player by A2. After two days PW 3 returned
the machine in a bag. He discovered that there was
some gold plated
spoons inside the bag. As Pw 3 was asking A2 about the spoons A2 made
a statement telling PW 3 that he foresaw
darkness coming towards him
(or lurking). Immediately a posse of police officers arrived in a
white van. The witness and A3 were
there and then arrested by the
police. The witness who was an accomplice witness told his evidence
in a satisfactory manner. He
may not have been present on the last
occasion but he confirmed the existence of the plan and its later
execution. At the beginning
one Thabang Rafutho is said to have
featured to a lesser extent.

PW 4 was
TSabo Ngatane. He was an eye witness and a victim in the brutal acts
of the day the Deceased died. His evidence was crucial.
In addition
it was corroborated in most respects. On that day the witness had
been sleeping with the Deceased at Deceased's place.
The witness had
also had a government vehicle which was in his possession parked in
the premises. The two were then awakened by
the sound of the bedroom
door which was forcefully being opened. As the witness woke up, he
noticed that three men had entered.
A3 one of the men (who he more
clearly saw later) was pointing a gun at the witness and Deceased.
The other gentleman was carrying
a bayonet similar to that of a .303
rifle. A similar bayonet was exhibited. The gentleman was at the same
time ordering the witness
to keep quite and lye down.

7

The
witness testified that at the same time a bayonet was pointed at him
he through some reaction caused by panic fright or confusion,
crabbed
one of the three gentlemen by his two feet and during the struggle
one of them kicked him on the mouth and at that time
he heard sound
of a gun shot. The gentleman who the witness had crabbed at his feet
had put on greenish track suit. He was then
overpowered by the three
men who then fastened his hands together and his feet. The witness
was at that time able to realize that
the Deceased had fallen between
the bed and wall wardrobe. She seemed motionless. Indeed I noted the
witness fumbled when he had
to state categorically whether the light
came from inside the bedroom or was from an outside lamp. I concluded
however that at
all stages in the proceedings things were done
through clear illumination of an electric lamp. In these conditions I
did not doubt
that Pw4 must have been able to identify all the
Accused. Except this question as to the source of light not much
attack was made
in cross-examination as to the ability of the witness
to have identified the three intruders or in any other respect.

The three
men then started to demand money from him (Pw4) and ransacked the
room and took away the items exhibited before Court
and others which
were originally discovered from the different Accused and others as
the case may be. In the process the witness
managed to see their
faces being those of Al, A2 and A3. That in particular A3 was the
person who was pointing the gun. After taking
the household items as
aforesaid the intruders demanded government car keys and drove away
the government vehicle (white Corolla)
registration X7930, which had
been parked outside.

8

Before
then the intruders had taken away the police radio (walkie talkie)
cellular phone including Pw4's service gun issued to him
by PW 8 Sgt
Ntili which he identified as ID "12". See also a ballistic
report Exhibit "A". The report was admitted
by consent.
Importantly, the report showed that a retrieved cartridge was fired
from a Beretta 9mm pistol found with Al, the said
cartridge having
been found in the Deceased's bedroom. The Beretta pistol was also
exhibited before this Court by Pw8 and/or Pw9.
I concluded therefore
that the gunshot wound on the Deceased must have been caused by the
firing of the pistol by one of the people
who attacked her. See also
the evidence of police officer Baholo about discovery of the
cartridge.

Thereafter
Pw4 said he jump jacked or crawled to the kitchen where he found a
knife with which he cut the cloth material with which
he had been
fastened. He then went to Pw1 who unfastened his hands. To Pw1 the
witness told everything that had just taken place
at the Deceased's
place just across. They together went to the scene. They later went
to report at the police charge office. Consequently
police went to
inspect the scene of the crime.

On the
4th August 1998 as Pw4 testified further he identified the Deceased's
3/4 leather jacket as having been worn by A4. At one
time at the
police office in the presence of police officer S/Lt Baholo Pw5 was
present and had described the circumstances that
had caused discovery
of the leather jacket work by A4 and a witness alerting police to A4
following the discovery of the apparel.
Later that day following A4's
explanation she led police officers to her sister's home. This had
been preceded by an explanation
by A4 which amounted to her having
bought the goods at Mafafa or Ralikoro store. She was confronted with
her sister. It was to
do with

9

something
having been said by A4 something about how A4 got into possession of
the property found on her which had been identified
by Pw5 as having
belonged to the Deceased. A4's sister refused and protested at A4's
attempt to associate her with the allegedly
stolen goods.

Later A4
took Pw4 together with other police officers to Ha Tsolo on the
outskirts of Maseru where A4 cohabited with Al. The occupier
of the
house who turned out to be A1 opened the door albeit reluctantly.
There at Al's home further and numerous items were found
consisting
of the bulk of the goods taken from Deceased's home.

To divert
the latter event is corroborated by Pw10 Malebohang Raboroko. She
said she was Al and A4's neighbour at Ha Tsolo. When
police arrived
at Ha Tsolo with A4 she was asked by the police officer accompanying
A4 to come and witness the search in Al and
A4's house. She came and
witnessed the search when several items were retrieved. They were
identified by Pw4 and Pw6 as having
belonged to the Deceased. Pwl0
further confirmed that the police took away those suspected items. A1
and A4 were arrested as well.

Upon
entering the house Pw4 identified Al as one of the men who killed the
Deceased. He also noticed his own leather jacket hanging
on the wall.
When a further search was conducted many more items were found and
identified by Pw4 as the ones belonging to the
Deceased and the
witness' vehicle (white Corolla) car keys. The vehicle was later in
the following morning and about midday seen
by Monokoa Setjeo (Pw7)
at Ha Mantsebo in Qeme area where police found it. It had minor

10

damage eg
to the radio but had stalled due to flat tyres. From Al's place Pw4
went with those other police officers to Ha Seoli
on the outskirts of
Maseru where A2 and A3 were arrested although A3 escaped. The latter
was arrested by Pw11 Trooper Maphathe
who had heard that he was
wanted by police, having escaped from custody.

I formed
the impression that in no way was PW4 shaken in cross examination. He
told his evidence most clearly, and meticulously.
He was most
truthful. Most specifically he identified the three Accused and was
corroborated by the finding of the goods at Al
and A4 which was not
denied.

Pw5 was
'Mamojalefa Motsoahae. She testified that on the day A4 was arrested
she (A4) was wearing a black 3/4 leather jacket. She
said she even
asked her where A4 had bought it because it was a nice garment. A4
replied that she had bought it from hawkers. Later
A4 was taken by
police from her work. She left her handbag with this witness. That
hand bag was later taken by her Supervisor and
inside that bag there
was some jewellery. I would conclude that this jacket which the
witness spoke about was the exhibit found
in possession of Al and A4
in that A4 in her unchallenged evidence traced it to the goods
brought by Al into the household.

The
evidence of Pw5 was confirmed by the testimony of Pw6 Nthabiseng
ShibaTilo concerning the discovery of the black leather jacket
and
earrings found on A4. Pw6 worked with A4 at her place of work in the
GCM Factory at Ha Thetsane. A4 was asked about the origins
of the
jacket in the company of Pw6 in the presence of police officer
Baholo. The explanations given by A4 was that she had bought
the
jacket at Ralikoro store. This was later proved to be untrue in the
proceedings. At the

11

charge
office according to Pw6 Pw6 was able to easily identify the black
jacket as having belonged to Deceased.

Pw6 also
confirmed the journey of A4 from the police to Lithabaneng (A4's
residence place) and her place at Ha Tsolo. Pw6 was able
to identify
items listed as ID "2", ID "8", ID "5",
ID "10", ID "7", ID "22",
ID "6",
AD "12", ID "16", ID "29", ID "11",
ID "3" and ID "9"
that had been found in
possession of Al and then seized by police. The witness was not
cross-examined.

The
importance of the unchallenged testimony of Pwl2 Det.Sgt Ralebea lyed
in not only having himself attended at Al and A4's place
and in
subsequent arrest of the accused, he also put in as exhibits 1"
to 19". He was also able to vouch for those items
which were not
before Court which had been listed and retrieved for safekeeping as
authorized by the Clerk of Court as aforesaid.
These were the items
alleged handed over to the Deceased's children. He testified to about
twenty two (22) of such items. He conceded
that it could be more and
his memory would be failing him in that regard .

It was
not contended by the defence as to the respect in which this witness
(Pwl2) who arrested, cautioned and charged the Accused
would be
unreliable. I did not see any. Incidentally only one greenish or
bluish blanket was claimed by one of the Accused. This
must have been
in response to the testimony of another Crown witness. And no other
items before the Court were claimed by the Accused
as having been
their personal property. I nevertheless concluded that all the items
were taken

12

from the
Deceased and or the possession of Pw4 illegally as claimed in the
indictment.

Pw9 was
pivotal. Having been at CGM factory with Pw6 where A4 was found
wearing a black leather jacket belonging to the Deceased,
having been
at the point where A4 was taken and, having been at Lithabaneng at
A4's sister's place and having been at Linakotseng
Ha Tsolo at Al and
A4's place, the evidence of police officer Baholo (Pw9) formed a
veritable corroboration of almost all the witnesses
including Pw4 and
Pw6.

Briefly
it should be noted that Pw9 testified as follows. At Police
Headquarters where he worked he received a report of the crime

committed at Deceased's place from his superior Mr. Matona. He
immediately proceeded to the scene where he found group of policemen

including Pw4 who had a torn lip and a swollen face.

Pw9
examined the scene. He found the security fence torn open and the
entry door to the sitting room of Deceased's house broken
open. He
went into the bedroom. He found things scattered about. He saw the
dead body of Mrs Makae which he photographed and arranged
to be taken
to the Queen Elizabeth II Hospital mortuary. Finger prints were taken
by the witness including photograph pictures
of the scene.

In the
afternoon Pw9 received a report about discovery of the vehicle
registration X 7930 that has been in possession of Pw4 on
the fateful
night. The witness went to Ha Josiase in the Qeme area in the company
of officers Jobo and

13

Lebetsa.
Thy arrived where the vehicle had stalled. They examined the vehicle.
They discovered that it had two flat tyres. The car
which had a
detachable radio face had the face removed and lay on the floor of
the vehicle. The radio speaker was removed. The
spare key of the
vehicle was later used to remove the vehicle after flat wheels were
replaced and photographs taken.

Pw9 had
occasion later to attend at the mortuary to examine the dead body of
Mrs Makae (Deceased). The body was found with a bullet
wound between
the ribs. The body was opened and a spent bullet was found lodged
inside. The bullet was taken for a ballistic tests.

Pw9 later
received a telephone report which led to CGM Factory at Ha Thetsane.
He proceeded to the CGM Factory with policewoman
Motsapi. An
explanation given by Pw6 led to A4 who had to explain her acquisition
of a black leather jacket. A4's explanation led
to Mafafa store where
alleged sellers of the jacket was reportedly to be found. They were
not found. A4 failed to show the alleged
sellers Pw4 was then already
present.

Pw9 and
others then proceeded to Lithabaneng on a trail indicated by A4. She
was to be confronted with her sister. A4 had when confronted
with her
sister to Pw9's surprise proceeded to say quite irrelevantly that she
had come to inform her sister that she was under
arrest. She was
however asked to come to order and explain the real business. She
then cried out that Thapelo (who is Al) had put
her in trouble. It is
then that her sister angrily retorted "It is that Thapelo who I
have been warning

14

you
about" or words to that effect. A4's sister encouraged A4 to
tell the truth and not to waste time.

A4's
explanation led to Linakotseng Ha Tsolo at one house which they found
locked. Reportedly this premises were described as being
where Al and
A4 cohabited. Pw9 invited a local businesswoman Mrs Raboroko Pwl0 who
incidentally was Al's neighbour.

The door
was later opened by Al. So soon after Pw9 and fellow officers
identified themselves as police officers and what their mission
was
Pw4 arrived. Pw4 instantly said pointing at Al "This is the one"
and then looking at the wall: "That is my jacket."
The grey
leather jacket lay hanging on the wall (ID "4"). Al then
replied yes it is correct. It is me. (E ntate, ke tsona.
Ke 'na). Al
then volunteered to hand over all the goods having been already
informed that the investigation was about circumstances
surrounding
Mrs Makae's death.

Many
items were taken out from inside Al's house. It was those lot of
goods recorded in a list which Pw9 compiled. The items were

ultimately kept by exhibit keeper police woman Motsapi and another
witness who was part of investigation team. It was ladies shoes,

ladies clothing, household goods, bedding, radios, handbag, glasses,
briefcase containing cutlery all of which were identified
by this
witness up to twenty two items. This included about twenty five items
which were recorded in his list but not before Court.
Also identified
were car keys to vehicle C 7930 and A 2020 (Mrs Makae's) including a
bayonet. All the items were carried to the
charge office. When all
was not yet done, as the witness testified further, a 9mm Smith and
Wesson

15

pistol
was pointed out from inside a bin containing mealie-meal. It had a
serial no. 549666.

Following
Al's explanation, Pw9 and other officer including Pw4 proceeded to Ha
Seoli on the outskirts of Maseru. It was in the
afternoon when A3's
house was spotted and a shebeen which was said to be frequented by
Accused and others. The trip was to observe
the scene for a future
visit (preliminary survey). All thereafter went back to the police
office. They understood, as advised by
Al, that A3 and other would
later be back at his place and at the shebeen.

Later in
the early evening Pw9 with Pw4 and officer Ralebea and four other
officers attended at Ha Seoli. First they attended A3's
house while
others (of their group) proceeded to the shebeen which was not quite
far off. At A3's place A3 opened. The officers
identified themselves
as police officers. Pw4 immediately remarked (when seeing A3) that he
was the one who he held by his feet
in the struggle on that fateful
night. That the man had on him a greenish track suit. The gentleman
had still had the green track
suit on on this visit. A3 appeared to
acquiesce by saying "Oh gentlemen you have found us, arrest us"
(O bo-ntate le
se le re fumane, re tsoareng). A3 was in company of a
lady who described herself to be A3's wife.

A search
was conducted. Goods were found. Goods identified as ID "23",
AD "16", ID "26", ID "9",
ID "25",
ID "19".,ID "18", ID "2" were found.
These included those not exhibited which
however had been listed by
the witness. They were all about eighteen or more in number
wrist-watch, utensils, a radio music cassettes
as the record of
proceedings will more particularly reveal as the witness did

16

testify.
Let us be reminded of the fact that Deceased's children had to
retrieve some items from police safekeeping for their own
use. Those
exhibits not before Court included a green "Seanamarena
Blanket". I speak about this item because there was
confusion
about a blanket which one of the Accused claimed to be his. There was
this confusion about whether its colour was bluish
or greenish. There
was also a grey "Letlama Blanket" said to be not before
Court. These items found on A3 were all taken
away by the witness and
his colleagues to their vehicle.

Pw9 said
further that he asked A3 for a further explanation. It was in
connection with a gun. Before they could leave the place
that group
which had gone to the shebeen joined Pw9's group (which had remained
at A3's place). They were all present when the
explanation was made
about a gun. They heard the explanation. Immediately Pwl2 and two
other officers went and accompanied A3 to
a neighbouring house at the
place of one Monyetsane. Pw9 and those remaining were still looking
at them when they entered the house
and immediately got out.
Monyetsane's place is just separated by a distance of about twenty
five (25) paces as the witness estimated.
Monyetsane is one of the
original accused who is still at large.

Moetsane
uncovered a "two hundred litres" drum which was outside.
One of them exclaimed "Here it is". The witnesses
assumed
at that time it was a gun. Immediately A3 ran away "dashed off'.
The witness quickly approached where others were.
A3 outran every
one. Then Monyetsane was said to have escaped. He was originally one
of the Accused. The witness then took away
all the items to their
office. Monyetsane remained. It was A3 who ran away. There the
exhibits/items were recorded in the police
register.

17

Before
proceeding with the events of the following day Pw9 urged that it be
recorded that that group which had separated from them
had eventually
arrested A2. It included the accomplice witness Tholang Tlebere (Pw3)
who, as A2 testified, had paid a visit to
him as luck would have it
as his arrestor should have thought. On my part I question the
coincidence. On the following day Accused
including Pw3 took the
witness to the premises, scene of the crime. They separately did so
with each Accused. The purpose of the
exercise was to enable them to
identify to the police the scene of the crime. This they did. Pw9
said it was with alacrity or I
believe just readiness. It was only
Monyetsane who failed to point at the scene. I would say that the
caution with which the evidence
of Pw3 the accomplice witness must be
approached in this Court can only have been objectively demonstrated
to the extent that as
Pw9 says Pw3 also pointed the Deceased's
premises and they coincided with the scene of the crime. I could not
be without cause
or reason. No suggestion was given as to why Pw3
would fabricate.

Pw9
eventually saw the gun which had been taken out from the drum at
Monyetsane's place. It was a long 9mm pistol with a long muzzle.
Its
serial numbers had been rubbed off. Pw9 recalled that on 16 August
1998 he received a report from Pitso Ground police concerning
the
tracing or spotting of A3 who was seen moving about. Pw9 sped to
Pitso Ground police where he discovered that A3 had already
been
arrested. Pw9 submitted the dead bullet and the two guns were sent
for ballistic examination. The witness reminded that the
spent bullet
was also sent for examination. It was found as I concluded to be
consistent with a projectile fired from the Beretta
pistol exhibited
before this Court. It is the gun that Pw9 is speaking about.

18

Such was
the importance of Pw9's testimony. I noted in Cross examination of
this witness as follows. That the results of the finger
prints were
not revealed as regards all those occasions when he took the finger
prints. Neither were there photograph prints produced.
The witness
also showed concern at the absence of these items. This was so to the
extent that if produced they would connect the
Accused even more to
the crimes charged as the witness surmised.

Defence
Counsel showed concern at the fact that some items returned from the
Accused could have been released to the Deceased's
relatives for
safekeeping. Indeed it was quite a number of those items. I noted
that Pw9 had not specifically mentioned release
to Deceased's
children but he knew that certain items were released as aforesaid
although he had not been able to record those
separately. He knew
however when the goods were released by other officers probably Pwl2.
Pw9 also accepted that it could have
been an omission that he may not
have specified the items given to the Deceased's children. He did not
admit that that amounted
to carelessness. I accepted that this
amounted to carelessness but its significance would deepen or would
be disconcerting only
if the Accused claimed the items of property as
theirs.

That in
his evidence-in-chief he Pw9 could have not stated that items were
handed over to Deceased's children in the absence of
the Accused he
admitted. In the circumstances where none of Accused claimed the
goods as theirs it was not therefore consequential
as he opined. I
agreed with respect. Pw9 accepted that there was no good reason that
the goods were released in absence of the
Accused who should have
been informed of the intention. There was no danger however since
Accused did not claim the goods. I agreed.

19

Pw9 was
shown a greenish blanket and was asked whether he took the blanket
from A3. Originally he vacillated but conceded that he
found it at
A3's who never claimed it. And incidentally it was identified by Pw4
and Pw6 as having belonged to the Deceased. The
blanket had been
identified as ID "36". Pw9 did not deny that it was A4 who
showed him Al's place.

Indeed it
was revealed that there was conflict between Pw4 and Pw9 in the
following respect. Pw4 said it took sometime for Al to
open when he
was attended on the day goods were discovered. Pw9 suggested on the
contrary that Al did not reluctantly open the
door when they knocked.
The witness was adamant that it could not have been a considerably a
long time before Al opened. But there
was some delay. Pw9 accepted
that Al was co-operating all along. He claimed that Al took out the
gun on the urging of A4 but denied
that this was in reaction any
witnessing assault on Al. He says he was the one who ordered Al to
take out the gun. He denied that
Al was ever assaulted or that he
took out the gun as a result of assaults on him. The witness accepted
that he may have not spoken
about that the gun discovered at Al's had
traces of mealie-meal. To the witness, as he testified, the important
thing was the serial
number of the gun which he investigated as being
the essential.

I
concluded that none of the challenges made to Pw9 in
cross-examination revealed Pw9 as inept in his investigation. Nor
that he
was unreliable in any respect. The witness was impressive,
truthful and candid throughout and I believed his evidence as the key

person as an investigating officer. I would further add that his

20

evidence
was fully corroborated in the necessary respects and therefore
amounted to proof beyond a reasonable doubt.

As said
before the application for discharge of the A4 at the end of Crown
case was refused on the 29th April 2003, I had also been
of the mind
that some other competent verdict would be returned. But at the close
of the whole case I became of the view that A4's
story might
reasonably be true which is the real test. I bore in mind the
evidence of Pw9 when he spoke of the statement made by
A4 at her
sister's place, which was quite consistent with A4's evidence in her
own defence. In any event the test at the latter
stage was whether
the Accused's story might reasonably possibly be true. The Crown
conceded that this might be so.

The
question ought to be with regard to Al, A2, A3 whether their defence
have been such as to displace the strong prima facie case
against
them at the end of this case. Strong as the Crown case appeared to be
I marvelled at the absence of any attempt on the
defence to speak
about the aspect of the Crown witness' demeanour on any attempt to
attack their credibility or to seek to evaluate
their credibility so
as to show any negative aspects the weight of which would cast any
doubt on the credibility of the witness
so as to influence the
finding of the Court as to the truth. This became the trend even in
argument. Incidentally I may mention
that any attack on Pw4 was as to
his opportunity to have seen the alleged intruders (which Pw4 said
they were Al, A2, A3). Allied
to this was the submission by the
defence as to the need to have held an identification parade.

21

Secondly,
was the attack by the Accused on Pw9 about his lack of particularly
of the items or goods which were released to Deceased's
children.
Incidentally it was only during his evidence in chief that Al
disclosed that his three bogart trousers and two pairs
of shoes, he
also said the grey leather jacket was his. Try as he did to explain
that there were other police officers who particularly
dealt with the
safekeeping of the exhibits an attack was directed at the issue to
the extent suggesting that the witness was untruthful,
he was not
candid and ought to have his evidence rejected. I disagreed.

Even
conceding that the defence approach left a lot of misgiving about
suggesting what defence would be relied upon I marvelled
at the
extent to which there was absence of evaluation as to credibility and
demeanour on the side of the Crown. Indeed up to the
end of the
defence case one did not see any defence except denials, alleged
absence at the scene (not an outright alibi) lack of
knowledge of
everything concerned with the alleged crime. Incidentally none of the
Accused denied in cross examination at least
being in possession of
the goods as proved found. The Crown may have had a reason or
perceived that the case against the Accused
was overwhelming but that
is not the best or the most helpful approach . Accused testified as
follows:

Accused
One (Al) Thapelo Moratha testified that he was arrested in August
1998. He lived with his wife (A4) who worked at the firms.
He himself
was unemployed. He further told the Court that the property seized
had been left at his house by his two friends when
he was in Mafeteng
and they said they would come to collect it later. They said they
were going to Van Rooyen's Gate. He did not

22

examine
the property to be able to deny that one garment or item was even
blood stained. He denied ever being at Ha Matala on the
fateful day
and neither did he kill Deceased and no identification parade was
held. Corroborating that A4 had (and she was not
challenged) said
that Al had said he got the property from his former employer. Al
story was not as I finally concluded convincing
as to the origins of
the goods found in his possession. This was not an explanation that
he even put forward to the police or during
cross examination. As I
observed the Accused story was false beyond a reasonable doubt. I
would not ignore that he had to give
a very cogent explanation to how
he came to recently possess such a loadful of goods. Indeed the fact
that an accused lied or put
up a false story need not on itself alone
be conclusive. See Rex v Ntsane Pelea 1991-1996 LLR 502 a witness Al
could not be believed.

I found
it difficult to believe this ingenious story by the Accused. Firstly
he met two people in Mafeteng who gave him the loadful
of items which
they would come later to uplift. He (Accused) ends up knowing the
people as Rapitsi and Match or Smatch. These two
accompanying people
ended up being arrested (which is denied by the Crown) and they end
up being put in remand by Public Prosecutor
(which is denied) and
they end up being remanded. It was quite a problem to decide whether
they were remanded in custody or on
own recognisance or were released
on bail. This the Crown denied.

It was
clear that the whole issue of the two men was a mere red herring. If
there was any truth in this the easiest thing would
have been to
subpoena the clerk of Court and the Public Prosecutor. The result
would be that, if the story was true, it would be
confirmed that it
had been in fact suggested to the police, that two people

23

were
involved in delivery of the goods to Al and that if that story was
followed and it would have resulted in the two people being
charged.
There was no suggestion as to why the two were excluded from
prosecution. It needs no mention what this would have done
to the
credibility of the Al. That record would be called or that the Public
Prosecutor would be called did not eventuate. It was
fair to conclude
that this ought to show lack of confidence by A1 in his own story and
absence of good faith. Incidentally not
only Al spoke of Smatch and
Rapitsi.

Accused
No. 2 (A2) lived at Ha Seoli. He was not married. He was arrested on
the 6 August 1998. Has not been out on bail since then.
If he
recalled well it was ten of the suspects together with Pw3, Lejota
Monyetsane, Tankiso Suping, Paballo, Al, Rapitsi, Smatch,
A3, A4 who
were all remanded by Court having been charged by Public Prosecutor
Ntlhako. Others were later released. The ten of
them were taken for
remand. When they got there they were remanded in custody. After that
they were detained for fourteen days
until they were remanded once
again for the third time. It was still ten of them. While in Court
for the third time Smatch and
Rapitsi were called by Public
Prosecutor Ntlhako. When they came back they took away their
belongings. Accused was not aware if
the two had been released by
Order of Court. Monyetsane and Tanki were released on bail. Paballo
just disappeared. He was no longer
with them.

A2 said
he was arrested at his home. It was many policemen who came to arrest
him. He knew officer Molapo, one light skinned and
one fattish
officer. He did not know his name. They found the Accused outside
with Pw3 who had been drinking. A2 was selling drinks.
The two were
arrested by police. He said the officer

24

declined
to furnish the reasons for their arrest. Instead the witness was
asked to tell his parents that he had killed someone.
This he denied.
He was thereafter assaulted with butt of a gun. As a result of the
assault he ended up agreeing that he had indeed
killed someone. It
was said they had killed someone at Ha Matala.

This
Accused and some police officers eventually went with him to some
flats not far from his home. It is there that he found Lejota

Monyetsane being assaulted by police at a house which he had hired.
They were asking him to produce a gun. Thereupon Monyetsane
pointed
at a gun hid in a drum. It was found. Accused was also present. They
rode off in police vehicles. It was to a place called
Charlie One. It
turned out to be one of the police offices Complexes in town. When
they arrived they found A3 and A4 present. Al
was present as well.

At
Charlie One A2 was asked if he knew those that the witness found
already present. He said he did not know them including A3.
One tall
man with glasses on emerged. He asked Pw3 and others why they killed
Mrs Makae. He replied that he had not killed anybody.
The police
officer contended that Pw3 knew that he had killed Mrs Makae. They
took the Accused and Pw3 into another office. They
were severely
assaulted in that office. Pw3 then said he told one Tankiso about the
radio taken from Ha Matala. He showed further
that he heard that from
Paballo that there they were taken to the cells at the police charge
office. It was four of them namely
Pw3, Al, A2 and A3. When they
arrived at the charge office they found Smatch, Rapitsi and
Monyetsane present. A4 was no longer
around. On the following day
Paballo was arrested. They were confronted with the said Paballo who
appeared not to know any of them
except Pw3.

25

A2
admitted having seen the load of exhibits or items originally put
before Court. He said he did not know any of the items nor
were any
of them connected to him. A2 knew a girl by the name of Cheseletso
who stayed at Ha Seoli. She was the Accused's own girlfriend.
She
used to visit this his girlfriend. Accused did not know that there
was ever any items of property found at Cheseletso's place
which were
related to this charge before Court Cheseletso had never visited the
Accused in prison.

Accused
said he knew of Rapitsi and Smatch for the first time and when he saw
them at the Charge Office. He just got to know them
when their names
were being called. Accused denied even meeting Pw3 at NTTC nor at
Borokhoaneng. He however knew Pw3 well. He did
not know one Rafutho.
Accused denied that he was ever involved in any manner in a plot to
steal a radio at Ha Matala, after a plan
to attend at one Maneo's
place failed. He stated that these were false allegations against
him. He denied that he reportedly wanted
to sell a cell phone for an
amount of M100.00. He denied that at one stage he left with others
and plotted to go at night to steal.
This was said by Pw3. He said
that these were false accusations. Accused denied even being at Ha
Matala around the place where
there was a killing which resulted in
his arrest.

A2 did
not know Pw4 before his arrest. Pw4 was not present when the Accused
was arrested. He first knew Pw4 at Charlie One when
his name was
being called. The Accused did not have occasion to speak to other
Accused during investigations. Accused did know
any of the police
officer who participated in his arrest. That was officer Molapo. The
Accused testified that he was asked to explain
about the death or
killing or circumstances of the case. That was in August 1998. It

26

was
during that month when they were arrested. He denied any knowledge
about all those issues or charges. Accused recalled that
there were
police officers. That was Baholo (Pw9) and Moleko if he recalled his
name well. The Accused did later remember the name
of the officer who
gave him a formal charge. He however forgot the name of the person
who gave him a formal charge. He denied ever
being shown any of the
exhibits nor was he asked to explain about any of them.

When
cross examined Accused only came to know Al at the charge office.
When put to him that he did see Al who was in company of
police who
had gone to arrest him he denied seeing him then. He would not say
that he had been present in company of the police.
When it was
pointed out that there was evidence to the effect that it was Al who
actually took police to his place he said he did
not know.

Accused
did not know where Rapitsi and Smatch were. They did not tell him
when they were released. He said he was sure that they
were sent for
remands. When asked what he would say when he is shown that their
names do not appear in the records he replied that
he was sure that
they were sent for remands and their names ought to appear in the
Court papers. He would not know why they did
not appear. When put to
him that Pw9 and Pwl2 only mention all but Smatch and Rapitsi his
reply was that there was no good reason
why they were not challenged
that his attorney ought to have made the challenge to those
witnesses. He was surprised why Crown
witnesses did not speak about
presence of these witnesses. He did not know why they failed to
disclose the names of those people.

27

He was
aware that his evidence differed from that of A1 as far as release of
Smatch and Rapitsi was concerned. It was the way he
saw it and in the
manner he would put the matter. That they were released on the third
remand was denied by the witness.

It was
put to A2 that he had said PW 3 had been present when he was
assaulted at A2's place. He reiterated his denial when told
that Pw3
did not speak about him being assaulted A2 confirmed that Pw3 did not
himself testify to his (Pw3) having been assaulted
nor did he say A2
was assaulted. And that as to why this was not put to Pw3 A2 would
not know. As a stock reply A2 said he was
not asked or led about the
issues during his evidence-in-chief.

A2
recalled the evidence of Pw4 that A2 was one of the people given
instructions by Al Deceased's house. Pw3 also said A2 had intended
to
go later to Deceased's house. He said it was not true. He agreed that
Pw3 knew him well but denied that they met at several
other places.
He said that was not true. Asked as what reason Pw3 would lie against
him. He did not know. He agreed that Cheseletso
was his girlfriend.

He
recalled that some of the items were found at Cheseletso he agreed.
He was present when they were seized. He denied however that
he was
the one who showed police Cheseletso's place. He said it was Pw3 who
showed police Cheseletso's home. Pw3 knew Cheseletso's
place. He knew
that Cheseletso was A2's girlfriend. He knew A2 very much. They
schooled together. A2 would not know the reason
for Pw3 fabricating
against him. He did not explain why he did not

28

challenge
Pwl2 when Pwl2 said that it was A2 who showed police Cheseletso's
place.

A2 denied
that the property found at Cheseletso's was the one seen by Pw4 being
taken from Deceased's house. He denied that it was
part of property
taken at Deceased's house. He also denied he visited his girlfriend
very frequently. But he did a few times before
his arrest. It was
more then three times. He did not go too often at night to visit his
girlfriend. He did not know where his girlfriend
got those goods. He
did not see that property.

There
were a lot of things that were not mere coincidence despite this
Accused's recalcitrance . Firstly, he knew Pw3 who cannot
have had a
motive to fabricate. He was well known to Pw3 who cannot have had a
motive to fabricate. He was well known to Pw3 and
they were friends.
It is against Pw3 that A2 denied every statement made by Pw3
including the preparations preceding the attack
on Deceased's
premises. This included keeping surveillance on the premises of the
Deceased. A2 ended saying that Pw3 was an habitual
liar but he would
not venture to say that they had ever quarrelled. Pw3 must have
picked on A2 (according to A2) because he heard
that A2 was once
arrested in South Africa. This was absolutely preposterous in the
circumstances and without foundation.

As I
found, Al showed the police where A2 was. Goods belonging to Deceased
were found at A2's girlfriend. And lastly A2 had been
identified by
Pw4 as one of the men who broke into Deceased's place on that fateful
day and were under command of Al. In this they
were identified by Pw4
who I believed. I concluded

29

that A2
was completely untruthful and relied on denials even on those facts
which obviously connected him with the goods evidently
found in his
possession each and every allegation and against every witness who
was a truthful witness or was not proved to be
a liar. I found no
reason why any of the witnesses was a liar. I concluded in the
circumstance that A2 was not a truthful witness.
There was no basis
on which he ought to be believed. I rejected his testimony.

Dw3 was
A3 Thebe Monare. He testified as follows. He had no other name except
the ones put forward or recorded. He was arrested
and at the time of
his arrest he was staying at Qoaling. He is a married man. He has two
children. He was told that he had killed
someone. It was by many
policemen who came to arrest him. He had not known any of them. They
said that he should hand over a firearm.
He told them that he does
not use firearms. They asked whether A3 would produce the gun at the
police office. He replied that he
does not possess a firearm because
he does not use firearms. A search was conducted. They found nothing
during the search. One
of them suggested that they should leave
nothing behind since they had discovered nothing. Consequently they
took all property
belonging to him. He was surprised.

Having
taken all his property they also made him to go into police vehicle
but he escaped and ran away later when he was ordered
to go to one of
his companions. He escaped when he was about to reach the place of
his companion. He had anticipated more assault
by police. That is why
he ran away. It was in the evening. He was later arrested at Ha
Thamae not at Pitso Ground.

30

From Ha
Thamae he was sent to a police charge office in town. At that office
he knew no one. One officer Moleko asked him why he
escaped he
replied that he could not stand that kind of situation. He has been
assaulted as he alleged. He was later taken to prison
after he had
been taken for remand before a magistrate. He did not show the
alleged injuries from assaults by police to the prison
officers. He
was alone (as an Accused) but in company of the policemen when taken
to Court.

A3 said
that he was not shown any items which were eventually brought to
Court as exhibits. Before Court he said he was barely shown
part of
the property. He was adamant that he was never shown the property as
exhibits. When the question was pressed by the Court
to say
particularly whether the property taken from his home which he would
claim or the ones which were exhibited he changed his
mind and said
he was never shown the property at his home. But he ended up saying
that he saw only part of it. And it was taken
from his possession. He
said he explained that it was part of his property. I found no reason
for this vacillation or evasiveness
from this Accused except to
signify that he intended not to be honest to the Court.

In cross
examination A3 contended that only a blanket was pointed out as his
and no other property. He said his Counsel as an indication
did put
to the witnesses that the blanket "a greenish Seanamarena"
blanket. He did say it was his. Crown Counsel however
suggested that
the true colour of the blanket should have been blue or bluish. A3
however insisted that the colour was greenish
with maize-meal designs
or motifs or drawings or decorations. Accused then said he only
explained to his Counsel in consultation
that there were other items
he claimed other than the "Seanamarena" blanket. As I
observed with anxiety, no such further
items or

31

property
were pointed out from the list of exhibits at any stage. A3 was again
pressed by Gentleman Assessor Motsamai to mention
just a few of his
personal items that were taken. He said it was water pots, pairs of
trousers and sleeping blankets. Unfortunately
none of them were
pointed in Court when Crown Counsel were testifying. The witness says
he saw a short pants. When he was cross
examined A3 testified further
as follows: He did not know where A2 stayed. He first knew him when
they met in prison. Neither had
he known Pw3 Likewise he had not
known A4. This I did not recall. The other goods of his were not
exhibited as he alleged.

The
Accused was not able to recall other items found with him except to
say that it was his and his wife's clothing. He was not
able to
specifically recall those. The Accused was not able to recall other
items found with him except to say that it was his
and his wife's
clothing. He was not able to recall any of those specifically. He
insisted it was his own clothing. He had forgotten
dispute that he
had been present when the items were taken. When pressed he ended up
saying that he would only recall some items.
These were tissues of
lie.

Accused
testified further that he did not know Pw3 (Accomplice witness). He
denied that he ever went to Ha Matala in company of
the said Pw3 and
others for a certain purpose. He denied there was any plot involving
himself, Pw3, Al, A2 and Tankiso to go to
Ha Matala at Deceased's
place.

A3 said
he did not know Pw4 before the time they met at the charge office and
he had not met him anywhere else. Even in the face
the evidence led
by Pw4 about the Accused's presence at Ha Matala he replied that the
evidence was a

32

fabrication
against him. The Accused said for a living had been smuggling dagga
across the border before his arrest. His wife was
not engaged in any
kind of work. She was still looking for one.

After his
arrest Accused agreed that police asked him to take them to a certain
friend of his whose name they did not disclose.
They said he should
alight from a vehicle at one place to go to a friend's home. They did
go to someone's place. He came to know
that that he was jointly
charged with others when they were called together at Court. He was
surprised that he was charged with
people he did not know. On remand
it was many of people. It was about six or seven as he estimated. Pw3
was one of them as the
Accused recalled. Smatch and Rapitsi were not
present at the magistrate's Court.

Amongst
the items taken he denied if gold plated spoons and eleven gold
pladed forks, three gold table knifes were found at his
home as Pwl2
testified. He denied. These items were similar to other items found
at A2's girlfriend's place. He said he did not
know A2's girlfriend
Cheseletso. Accused were not surprised with the evidence that similar
utensils found in his place were also
found with A2's girlfriend. He
denied that such were found with him. He was reminded that similar
utensils on custom made cutlery
case was found at Al's place. In the
cutlery case some forks and spoons were found missing. That the case
was designed to contain
them. He did not know that. That the items
were found at the different places he would not explain the
coincidence. He denied that
it was so. According to Pw4 the cutlery
case was taken by the three Accused. When challenged that Pw4 had
knowledge that Deceased

33

had such
property A3 was unable to answer. That Pw4 recognized the Accused on
the fateful night was denied as being a falsehood
on the part of Pw4.

When
Accused was challenged to say that Pw4 said he even had a scar on one
of his cheeks the witness replied that indeed he had
a scar but it
was not near one of his eyes but on the right side of the nose. The
Court had occasion to examine the scar which
the Accused pointed out.
He thought that it was in fact on the right of the nostrils. But that
it was below the eye was without
doubt as the Court observed. I could
not help but conclude that such a scar was, in fact, seen by Pw4.

A3 was
asked as to when he first knew Pw3. He replied that it was first in
this Court. When told that Pw3 said they first met in
company of Al
and 3 when they were planning to "get" a radio the Accused
would only say Pw3 had been lying. He did not
however say what a
special reason would be for him to lie when they had just recently
met he replied that P3 had repeatedly lied
in the past. A3 would say
by way of emphasis that he even met Pw3 in this Court not before at
the magistrate's Court. That Pw4
could or did see him at the place of
the Deceased when his hands and feet were tied by him (A3) with a
piece of cloth from a bed
sheet he denied.

In my
considered opinion the evidence of the A3 was the best pedigree of
total denial of every one and all Crown witnesses allegations

including Pw3 who spoke about a plan to attack Deceased's house.
Speaking about the last witness out of the many it was unclear
as to
why the witnesses would go out to fabricate against this Accused. The
only conclusion on my part was that this witness evidence
was false
beyond a reasonable doubt. In the background would be the formidable
Crown

34

evidence
which connects this Accused to the events at Deceased's place. In
addition even after that day, the way he came to be arrested
and
identified shows none of any innocent coincidences. I would add
further.

Police
were led to A3's place by Al. Goods identified as Deceased's were
found at A3's place and two other places. Surprisingly
no witnesses
were challenged about this discovery of the loot. A3 when found at
his place in company of his wife accepted that
"he has been
found and he is to be arrested". That A3 was one of the persons
who attended at Deceased place on the fateful
night has become to me
an irresistible inference. I have been informed of no other basis on
the facts in favour of a different
inference. For purpose of all
Accused's defence there should have been an allegation that they were
at some other place but not
at Deceased's place. I concluded in the
present circumstance that A3 was in company of Al and A2 in that
pre-planned venture which
ended in murder, mayhem and robbery.

A4
testified without challenge that a lot of goods were found at Al's
place. There may be a difference between Al and A4 as to the
version
of how the goods arrived at their common place of residence. Largely
they are in agreement that the goods were found in
their possession.
The result of the testimony of A4 as, I found, it favoured her
release after the Crown and Defence case on the
principle that her
story might reasonably possibly be true. That she may have received
the goods innocently. She however lied on
a number of occasions. She
was lucky.

I have
already faulted the Crown and the Defence's approach to evaluation of
evidence. It is this absence of reference or comment
to demeanour of
witnesses and

35

their
credibility. Where a witness has lied, where he has not told the
truth, or where his evidence is doubtful or mistaken but
not stark
untruthful or is exaggerated or where his evidence is to be believed
because it is true or it is peppered with incongruities,
the Crown
and the defence must always say so and tell the Court why it is so.
It is simply about contradictions that are to be
found, corroboration
of other witnesses, inherent improbabilities. As said before the
demeanour of witness has to be commented
upon. And finally the weight
to be attached to objects and documents handed in by witnesses. The
Court has to be told where and
how the evidence is reliable or
unreliable. Unfortunately the Court was not favoured with much
assistances in this regard.

I have
shown how, as demonstrable, the evidence of Pw3 has been
corroborated. I have not been told how he could be discredited and

this extended to all the witnesses of the Crown except the query
about absence of an identification parade. In my opinion an
identification
parade is not substantive evidence and it can only be
used as corroboration where there would be a real doubt. In the
circumstances
of the case other substantial pointers exclude any
doubt about identification of the three Accused. It seemed to me it
was clear
that Pw4 was able to have clearly seen the three Accused
well during the illicit proceedings of that night. Moreover he was
not
shaken as a witness.

In my
additional observation the value of the evidence of Smatch and
Rapitsi has occupied a substantial part of the defence's cross

examination. One would have wanted serious comments from both sides
about the value of the evidence which speaks about the twosome.

Whether one seeks that it be believed or not. The Crown

36

may have
felt that the evidence indicating existence of the gentlemen was
merely fertile imagination of Accused, but an attempt
was made by the
Crown to demonstrate the unlikelihood of their having been charged. I
was satisfied that the Crown could not do
more where the Defence had
an opportunity to gainsay the Crown's evidence of the PE sheet.

I have
already made my own comments and observation that it cannot be proved
that the two gentlemen featured in the prosecution
or remands of this
case at the magistrate's Court stage. Indeed the Crown sought
valiantly to bringing a P E sheet showing only
those people who
according to the record were charged. As I said the defence could
have done more than that if they had the confidence
in that truth of
that part of their story. I thought I was succeeding in urging the
defence in that direction. It has nothing to
do with onus.

The
evidence of the accomplice (Pw3) to the extent that it speaks about
the plan does successfully connect this Accused to the plot.
The
execution of the plot was dealt with by other witnesses to the extent
that it belies the whole evidence of the Accused. This
is not to
suggest that the Accused bore any onus of proof. Indeed this Accused
did not say there was any ulterior motive for the
evidence that
sought to connect them with the crimes charged. Neither was this
suggested in cross-examination.

There was
another shortcoming of A3's defence. It was about his alleged absence
at the scene of the crime. It is namely that if
an alibi was
suggested it should have been such as to show that he was absent when
the crime was committed because

37

he was
somewhere else. Again it has nothing to do with proof of his own
alibi but merely to suggest that he was somewhere else.
Overall this
Accused testimony as a witness was incredible and false beyond a
reasonable doubt.

I now
come to the evidence of A4 to say that she described the
circumstances of how the stolen goods arrived at the place of Al.
It
confirmed that she was arrested and was found putting on a jacket and
earrings which were part of the stolen items. That she
was asked to
find alleged sellers of stolen goods and that there were no such
sellers. Following this she went to her sister's
place where she
disclosed that Thapelo (Al) has put her in problems and where any
association with the crime was not connected
to her sister.

A4 was
accordingly urged by her sister to speak the truth to the police and
that she then led them to Ha Tsolo where the goods were
found. And a
gun was also found including other items as also elicited in the
testimony of other witnesses. As a result the goods
were taken to the
police. She, Al and others were then or afterwards arrested. The
evidence of the Crown rested after the evidence
of this witnesses. I
have already commented about the value of her evidence which was
wholly unchallenged and whose result was
that it connected Al to the
stolen goods. The above also constitutes and concludes a summary of
the evidence this Court has heard.

I did not
accept that the evidence of the defence constitutes anything that is
credible and convincing. It ought to be rejected
as false beyond a
reasonable doubt. I have already commented about the satisfactory
nature of the evidence of the accomplice witness
(Pw3) which was
corroborated in all material respects. Indeed

38

there was
nothing pointed out by the defence as to any aspect or aspects which
proved to my satisfaction that the accomplice evidence
was in any way
unreliable. I would specifically conclude that the accomplice's
evidence is solid as far as the aspect of the conspiracy
is
concerned. He ended up being convincing and being corroborated in
turn.

I need
only to mention that it is trite law that the onus of proof in all
criminal cases lies on the Crown throughout. It is the
test that I
adopt which will end with whether or not there is such proof be
beyond a reasonable doubt. The requirement of the part
of the defence
on the other hand is that Accused should prove their case on a
balance of probabilities.

I have
already commented about the circumstances at Mrs Makae's place to say
that the situation was such that Pw4's evidence has
left no doubt in
my mind that he was able to identify the true intruders. I found that
no doubt remained which should have called
for an identification
parade. Indeed no side called for one. The evidence of Pw4 is totally
direct evidence. He was involved and
he was a victim of the goings of
that night although the events took place at night. I have commented
that there is no room to
doubt that the three Accused were clearly
seen. I therefore found that Pw4's evidence was reliable I have no
doubt that he clearly
identified the three attackers who are Al, A2
and A3.

I now
speak about this aspect of Al having received the items subject of
the charge. He received them very much sooner after the
crime. He
became in recent possession of the goods. I therefore agree with the
Crown that there is always a

39

serious
need for someone who has just received goods to explain
satisfactorily his receipt of such goods. This Al has failed to
do
except to put in an incredible story.

There is
no further doubt, also, that it was not only a question of the three
Accused having attacked Mr Ngatane and Mrs Makae.
It is that one of
them was armed with a gun and that is the gun which was used to
fatally shoot Mrs Makae. The Crown says that
it was A3. The other
Accused was carrying a bayonet which was later found at Al's place.
The Crown submitted correctly that the
three people were of one mind
as to one purpose which was to break in and get household items as a
result of their attack on the
premises.

It is not
only important that the three Accused may have just decided to steal.
Significantly they were armed and they must have
been expecting
resistance and were intending that their mission must get through at
all cost. The result was the death of Mrs Makae
which in law was
intended by the Accused in this action. Pw4 succumbed to their
physical force. Their violence also resulted in
the death of Mrs
Makae and their intention was to make the two submit to force and
violence. They were acting in common purpose.
The concept of common
purpose is illustrated in the case of State v Sefatsa and Others
1988(1) SA 868(AD) where it was said by
the Court:

"A casual connection between the acts of every party to the
common purpose may be casual connection and the death of the deceased

need not be proved to sustain a conviction of murder in respect of
each of the participants."

If one of
the three killed all of them killed because the purpose was one again
in Rex v Ntsele 1955(2) 145(AD) at 148 It is said:

40

" .....that the true rule of law is this, where several persons
engaged in a pursuit of common unlawful object and one of
them does
an act which others ought to have known was not improbable in the
cause of pursuing such unlawful object all of them
are guilty."

I have
said they had an intention, they expected a resistance, they were
prepared to bring about submission on Mrs Makae and whoever
was with
her, with force. That is why Accused had dangerous weapons which is a
gun and a bayonet. It does not matter who had that
gun. All of them
had the same purpose and the use of the weapons was towards achieving
that purpose. While they may have thought
that a breaking in would
have achieved what they may have originally intended that is to
steal, they surely must have bargained
for more by pursuing "an
unlawful object." See R v Ntsele (supra) Again the same
principle of common purpose is illustrated
in Rex v Ndlangisa and
Others 1946 AD 1101 page 1101:

"Where two or more persons combine in an undertaking for an
illegal purpose each of them is liable for anything done by others
of
the combination in the furtherance of their object if what was done
was what they knew or ought to have known would be a probable
result
of their offering to achieve their object."

I agree
with the Crown's submission that therefore Al, A2 and A3 are liable
in the death of Mrs Makae. They ought to have seen that
if they had a
gun and if there was resistance they would use the gun but that it
was unlawful, In this case it was not demonstrated
that there was not
much resistance to speak about.

The Crown
further suggested a very important authority to me of Mohlalisi and
Others v Rex 1981(2). In this case three Appellants
were found guilty
of murder and housebreaking they were sentenced to death by the High
Court. Those three had planned to break
into a shop and steal money
and blankets they already knew that the

41

deceased
was a night watchman at that shop. So they went there one of them
armed with a wire and one of them had in his possession
a cloth. They
then set upon this night watchman. They tied his hands to the back
and tied his ankles. A piece of cloth was then
inserted in his mouth
and according to the doctor this piece of cloth prevented the
deceased from breathing. Consequently the deceased
died as a result
of suffocation. After doing that to the deceased they broke into the
shop and stole. Those three Appellants were
all found guilty of
murder.

The act
of inserting a cloth inside the deceased's mouth was considered to be
the act of all of them. It was not even necessary
to know who of them
did that. It was concluded that the intention was the intention of
all of them because they clearly foresaw
that death would result.

In the
present case my conclusion is that Accused must have foreseen that
there would be resistance and there would be need to use
of their own
firearm. It was an unlicensed firearm as such. No one said to the
Court there was a licence for possession of that
firearm. I conclude
also that the possession of the gun was unlawful.

It does
not matter what Pw3's evidence may have amounted to in that Pw3 may
not have spelt out exactly what would happen. But he
spoke of a
scheme. That is, to break into the premises. The premises were broken
into. I have already discussed the basis for my
concluding that there
was intention to do things that followed upon agreement to break into
Mrs Makae's premises. I have said the
Accused must have

42

foreseen
and intended what followed the break in. I will conclude that they
are all guilty.

I go back
to the question of that possession of the goods by Al. In this
connection Miss Mofilikoane, Crown Counsel, in her submission
spoke
about the principle of the law and what it means in law if someone
had recently possessed goods that are found to have been
suspected to
have been stolen. She put forward an authority in the case of
Maqaphalla & Another v Rex 1971-73 LLR at page 39
and from
therein I quote as follows, that:

" Since the appellants have been found in possession of articles
which have recently been stolen during a break in at a store
and they
had false explanations of their ownership the Court was entitled to
draw the inference that they acquired those articles
when breaking
into the store in question has taken them. As to the articles found
in the appellants' possession which were similar
to those missed by
the storekeeper they in escapable inference was that they had been
stolen by the appellants on the same occasion
as the other articles."

This
remark is most appropriate with regard to A1. It is not only him but
all those with whom property taken from Mrs Makae's house
was found.
As to the case of State v Screech 1967(2) SA 407 I also found an
appropriate reference. It is because in that case it
was said:

"The line of reasoning which may compel a Court to come to
conclusion that the accused was found in possession of recently

stolen property is guilty of theft may equally lead to the conclusion
that he is the person who broke into the premises from which
it was
stolen with intent to steal."

We are
reminded here that it was not only that there was a break-in, it was
robbery and unlawful taking away of goods from either
Pw4 or from Mrs
Makae that was proved. The Accused persons were found in possession
of the items. The items were

43

stolen
from the Deceased's house on the day that she was killed and there is
a direct witness to that act.

It is
true that Accused all gave explanations to this Court. I agree with
the Crown submission that this explanations are palpably
false to the
extent that the evidence of the Pw3 is corroborated by that of Pw4 as
to events that followed. It is only A4's explanation
that I said it
was reasonably possibly true. The Crown strongly submitted that they
Accused acquired those items after breaking
into the Deceased's house
and that they robbed from Pw4 after killing the Deceased. The Crown
urged me to come to that conclusion.
I agreed.

I have
already spoken about the post mortem report that was admitted by
consent. That it proves that the cause of death was gun
shot wound
and there is no doubt in my mind that the Deceased died as a result
of being shot. The ballistic expert's evidence is
able to connect the
bullet found in the Deceased's body and the spent cartridge and is
consistent with having been fired from that
Beretta pistol.

I have
already commented about the extent to which the Accused seek to
distance themselves from the scene and their intention, as
seen from
their evidence, being to blame Smatch and Rapitsi, that the goods
could have come from the two gentlemen.

I have
already commented about the aspect of one or two occasions when one
of the Accused was claiming the goods as his. The Crown
has already
submitted that the Accused's evidence is palpably false in this
regard. I have agreed.

44

I have
already spoken about the evidence of Pw4 including that he spoke of
the items such as government car keys and those belonging
to another
car. It was not a mere coincidence that they, including other items
of property, were found with the Accused.

I have
commented about the need for the defence to have property or proper
challenges introduced their evidence during cross examination.
In
this regard I spoke about that case of Rex v Phaloane (supra). The
useful book to which Crown Counsel has referred to me The
Principles
of Evidence Schwikkard and Van der Merwe, 3rd Edition at page 529 3rd
where the learned authors are quoted to have said:

"An accused has the duty to introduce his defence this should be
done by putting his defence to the State witnesses who are
being
cross examined."

I adopt
and associate myself with the above pronouncement by learned authors.
It is consistent with principle. The history of this
case where the
defence case was not properly put to the Crown witnesses when they
testified under cross-examination testifies to
this failure in a very
large measure. This was so more particularly with regard to the
evidence concerning Smatch and Rapitsi as
the Crown pointed out quite
correctly. I would therefore agree with the Crown's submission that
that story about the twosome ought
not to be believed. It was merely
introduced as an afterthought.

I would
agree furthermore with the Crown submission that regard being had to
all evidence adduced before this Court, including the
admitted
evidence the onus cast on the Crown has been discharged beyond
reasonable doubt. It is the onus requiring the Crown to
prove its
case beyond reasonable doubt. I agree as to what the meaning

45

of beyond
reasonable doubt as explained in the case of Miller v Minister of
Pensions 1947 ALL.ER 372. At 373 it is said that:

"Proof beyond reason doubt does not mean proof beyond the shadow
of doubt. The law would fail to protect the community if
it is
admitted the fanciful possibilities to deflect the cause of justice."

This
authority contains a warning against a situation such as when some
day someone will come to Court and most impressively say
that he saw
the sun rising from the west and the Court will be asked to agree
with that. This should not be because that suggestion
is palpably
false and ludicrous. It is also nonsensical because in evaluating
evidence the Court does not forget common sense and
common knowledge.

I have
this order to make. Accused please stand up Gentlemen. You are guilty
as charged in that:

1. In
   terms of Court I:

   
   

On the 28th July 1998 at or near Ha Matala in the district of Maseru
you acted in concert one or other or all of you and you did

unlawfully and intentionally kill Priscilla Thoko Maphalala Makae
(Deceased) and thus commit the crime of murder. And:

2. In
   terms of Count II:

   
   

On the 28th July 1998 at or near Ha Matala in the District of Maseru
you acted in concert on or the other or all of you did unlawfully
and
with intention of inducing submission by Tsabo Ngatane and Deceased
by taking accused certain property exhibited before the
Court and
threatened

46

the said Tsabo Ngatane and Deceased and did there and then take and
steal from the said Tsabo Ngatane and Thoko Makae the said
property
which was the property of the Deceased and Tsabo Ngatane or in their
lawful possession and did rob them of the same. And:

3. In
   terms of Count III

   
   

On the 28th July 1998 and at or near Ha Matala in the district of
Maseru, you acted in concert one or other or all of you without
being
holder(s) of firearm certificate(s) issued under section 4 of the
said Act No. 17/1966 (as amended) did unlawfully and intentionally

have in your possession or under your control a firearm to wit 9mm
Beretta pistol with serial numbers rubbed off, and did thereby

contravene the provision of the aforesaid Act.

4. In
   terms of Count IV

   
   

In that upon or about the 16th day of August 1998 and at or near Ha
Tsolo in the district of Maseru, you Thapelo Moratha without
being
granted or being holder of a firearm certificate under section 4 of
the said Act (Act 17/1966) and unlawfully intentionally
have in your
possession a firearm to wit: 9mm Smith and Wesson Serial No A 549666
pistol loaded with 14 rounds of ammunition No.
A549666.

My
Assessors agree.

T.
Monapathi

Judge

2nd
April, 2004

47

JUDGMENT
- ON - EXTENUATING CIRCUMSTANCES

Delivered
by the Honourable Mr. Justice T. Monapathi On 5th day of May 2004

The three
Accused have been convicted of Count I - murder of Priscilla Thoko
Maphalala Makae (Deceased), Count II Armed Robry of
Tsabo Ngatane or
the said Deceased, Count III unlawful possession of a 9mm Beretta
pistol without licence in contravention of section
4 of Internal
Security Act No. 17/1966 and lastly Count IV (i.e. Al) unlawful
possession of Smith and Wesson pistol No. A454996
in contravention of
section 4 of the above Act.

Under the
provisions of section 296 of the Criminal Procedure and Evidence Act
1981 (CP&E) I must now consider whether there
are extenuating
circumstances in respect of the conviction for murder. I have to
refer also to Section 297(3) of the CP&E as
to the sentence which
the Court may impose which is :

"..................any sentence other than death upon any person
convicted before or by it is of opinion that there are extenuating

circumstances."

Again
section 296(2) of CP&E enjoins the Court to

"..... take into consideration the standards of behaviour of an
ordinary person of the class of the community the accused
belongs."

One of
the best know definitions of extenuating circumstances is that by
Landsdown JP in the case of R v Biyana (1938) EDL 30 at
page 311
namely that -

"..... on extenuating circumstance ..... is any fact associated
with the crime which serves in the minds of reasonable men
to
diminish morally albeit not legally, the degree of the prisoner's
guilt."

48

I thought
the statement by Jacobs CJ in Botso Masaile and Others v Rex -
1971-1973 LLR 148 at 164 at best captures most elements
of the
definition of extenuating circumstances. There the Court said:

"The Court must assess X's "moral guilt" or
blameworthiness by considering his state of mind at the time when he

committed the murder, not the unlawfulness of his conduct. The Court
must therefore apply a subjective test to determine whether

extenuating circumstances are present. It must consider the
particular state of mind at the time when he committed the offence,

not how a fictitious reasonable man would have behaved in the
circumstances. The nature of the murder and there are relevant to
the
general enquiry into extenuation circumstances faintly or remotely
connected with the crime or which are of purely sentimental

character, may not be taken into consideration..... It is wrong to
consider and dismiss each consideration in isolation."

The
following principles or guidelines emerge from decided cases -

1. The
   onus lies on the accused to prove extenuating circumstances on a
   balance of probabilities. See S v Ndlovu 1970(1) SA 430 (A))

   
   

2. The
   circumstances must be associated with the crime. See R v Ncanana
   1948(4) SA 399(AD))

   
   

3. The
   inquiry becomes three fold. See judgment of Rumpff JA in S v Babada
   in 1964(1) SA 26 (AD)) at page 27, namely -

   
   

1. Whether
   there is a circumstance which could have had a bearing upon the
   mind or mental facilities of the accused. This inquiry
   is an
   objective one once such circumstances have been pointed out.

   
   

2. Whether
   such circumstance did in fact influence the accused. These mean
   those were reasons for the accused's behaviour even
   if the basis
   may not have been an illegal one.
   

   
   

3. Whether
   in the opinion of the Court the act that has influenced the
   Accused's behaviour is less blameworthy. This is clearly
   importing
   a subjective test.
   

   
   

4. In
   the words of Schreiner JA in R v Fundakubi (supra)

   
   

"It is at least clear that the subjective side is of very great
importance and no factor, not too remotely or too faintly
on
indirectly related to the commission of the crime, which bear upon
the accused's moral blameworthiness in committing it can
be ruled out
of consideration."

49

See also
Mona and Another v Rex 1984-1989 LAC 364. A moral judgment has to be
made by the Court even though the factors be judged
subjectively (in
the opinion of the Court) . See S v Petrus 1969(4) SA 86 (AD) at page
96.

Each of
the factors must not be considered in isolation but the cumulative
effect of all possible extenuating circumstances is the
proper
approach. See S v Sigwahla 1967(4) 566 (AD) at 751. I agreed with Mr
Monyako in that. See also R v Blyth Monanthane CRI/T/14/97
in which
Cotran CJ mention four other useful principles (as quoted in Criminal
Law and Procedure Through Cases M P Mofokeng J (1985)
at pages 242 as
being:

1. that
   the onus_of establishing extenuating circumstance lies on the
   accused on balance of probabilities. (Ndlovu 1970(1) S.A. 430
   A.D.at
   433),

   
   

2. that
   the Court is obliged to give an accused the opportunity to advance
   any such factors of extenuation either during the trial
   stage or in
   a subsequent state after the verdict (Shabalala 1966(2) S.A. 297
   A.D., and Ntjanyana Phakoe - Lesotho Court of Appeal
   1963-1966
   H.C.L.R. p. 140) or indeed both, affording him two bites at the
   cherry,

   
   

3. that
   an accused may, if he so elects, resile from a position taken during
   the trial and adopt a completely different stance (Malopi
   1954(1)
   S.A. 390 at 397-398).

   
   

4. That
   he need not himself give evidence on that aspect. Extenuation
   circumstances may be found either from the body of the record
   or
   from other witnesses called on his behalf and the Court may so find
   even if an accused denies, at any stage, factors which
   the Court of
   its own motion nevertheless consider extenuating,

   
   

5. ................................................."

   
   

That the
manner in which the unlawful act was executed and the callousness of
the crime itself must not be given too much weight
and be allowed to
exclude the possibility of extenuating circumstances. In essence a
finding of guilt on a charge of murder in
itself suggests that a
serious crime has been committed. This incidentally

50

must have
been in the mind of the legislature when enacting the requirement
that extenuating circumstances be investigated.

Miss
Mofilikoane for the Crown, quoting Steyn JP in Tahleho Letuka v Rex
1997-1998 LLR 346 at 363, listed fourteen factors which
may be
considered in determining whether extenuating circumstances exist.
She then submitted that none of the said factors existed
in the
present case. Included in the list of the factors were firstly
absence of premeditation and secondly the fact that causing
death was
not the principal aim. Counsel referred the Court to Criminal Law and
Procedure Through Cases by M P Mofokeng J. (1985)
at 242-3 and
General Principles of Criminal Law Through Cases Visser and Vousler
(3rd Edition) at page 468.

Mr.
Monyako was unpersuaded that he should advise Accused to give
evidence in extenuation. See the judgment of Schutz P. in LEFASO
v
REX C of A (CRI) 9/1989 (unreported) at pages 11/12 for illustration
of the special difficulties of absence of evidence put in
by accused
in extenuation. These difficulties include the inability to test the
accused's subjective state of mind by the Court.
Neither was Mr
Monyako persuaded that perhaps he should look into other factors
besides absence of premeditation and the fact that
causing death was
not the principal aim.

Mr
Monyako based his latter argument on the fact that my finding on the
conviction on murder was consistent with that the Accused
action
having been clearly preceded by intention to steal from the house of
the Deceased (the principal aim) not intention to kill
in the nature
of dolus directus If that was so it could clearly amount to

51

absence
premeditation to kill on the part of the Accused. On this basis then
extenuation would be found as he submitted. I agreed
with respect..

Seen in
the light of what has been proved against the Accused in this Court,
I looked into the following aspects Firstly, the Accused
and some
others associated with them had attended at the precincts of the
Deceased premises during one of the few days prior to
the day of the
attack. There they saw the fat man who was most probably the Pw4.
They were dissuaded by the presence of that man.
It was during the
day they went away only to come back a few days later during the
night.

Secondly,
on a day or two after the first day Accused then came between the
third and fourth hour of the early morning of the 28th
July when they
or one of them was armed with a Beretta pistol and a bayonet because
they anticipated the Deceased was in occupation
and probably would
offer resistance or raise an alarm.

Thirdly,
the Accused had gained entry into the premises through a security
fence which they tore open and then broke a door into
the house.

Fourthly,
they must have seen a Corolla Sedan parked outside which had
government registration numbers. They must have known that
it was in
possession of someone who must have come into the premises. Why
couldn't they think it was that fat man? This leads me
into another
factor.

Fifthly,
Accused must have anticipated a form of resistance from the occupants
however meagre. Indeed they met some resistance from
PW4. In addition
the

52

Deceased
uttered disturbingly loud screams which had to be silenced. Indeed
the Deceased was permanently silenced.

Sixthly,
as I concluded in my judgment they were armed or one of them was
because they anticipated resistance and they were prepared
to subdue
any resistance. In this they had a Berreta pistol which was fatally
used against the Deceased.

The
question whether even if there was planning and persistence on the
part of the Accused and they later being prepared to counter

resistance that in itself constitutes premeditation and intention to
kill in sense of dolus directus has already been answered
in previous
Court decisions. I have already found it difficult to accept that
there was subjectively direct intention in the absence
of proof. Even
if I considered that this was so, for the purpose of my judgment
(which I have not) that would not be the approach
for the purpose of
investigating extenuating circumstances. It must be remembered that
the test remains a subjective one. It was
aptly put in the words of
Holmes JA in S v Sabben 1975(4) 303(A) at 304 BC (as quoted in S v
Nel 1989(4) SA 845(AD) at 850 B-D
as follows:

"Did he actually intend to compass the death of the deceased
(murder with dolus directus); or was it a case of foresight of
the
possibility of resultant death and persistence regardless whether
death ensued or not (murder with dolus eventualis)".

I was
satisfied that the finding of dolus evantualis is proper in this case
and that there could not have been premeditation. And
that there was
no proof that the intention of the Accused had been anything other
than to steal which they achieved by breaking
as they did.

53

The case
of Mohlalisi & Ors v Rex 1980(2) LLR 394 starting from page 403
to 404 is very instructive. It deals very much insightfully
with the
aspect of the correct attitude of Court towards the existence
extenuating circumstances. At page 403 at the bottom the
other
relevant circumstances present in that case are that the killing of
the deceased took place as a consequence of the decision
by the
appellants:

"to break into the shop and cafe at the attack to the deceased
by the appellants one of whom was armed with a stick, was one
which
regard being had for the form is age, put his life at risk. Despite
the risk the appellants did not hesitate to put their
plans into
execution and first and second appellants acted in callous disregard
of the life of the deceased in their determination
to gain their
ends. Regard being had to such circumstances the absence of dolus
directus on their part cannot avail them as an
extenuating
circumstance". (My emphasis)

The
learned judge then cited for comparison cases of S v Nkosi 1980(3) SA
825 AD and Sello Lemphane and Others v Rex 1980(i) LLR
57 (C of A).
This is the proper approach. But the Learned Judge did not say he
took other factors into consideration. He is not
seen to have dealt
with the factors cumulatively (if they existed) and in which case he
might have found that all was not morally
indefensible. One speaks of
the latter merely by way of conjecture.

In this
instant case I take, together with other factors the standard of the
community of these Accused into account. I would include
the fact as
text book writers and previous Court decision's also say. It must be
considered that it was clearly not that the intention
of the Accused
"from the word go" to kill but to steal. This is therefore
a case which on the balance of probabilities
I would find, as I did,
that there was extenuation. My Assessors do not agree.

54

SENTENCE

Delivered
by the Honourable Mr. Justice T. Monapathi On the 7th Day of May 2004

This is
the stage where I must sentence these Accused. The Accused do not
have previous convictions. The background is also that
I have been
told about matters that relate to them or their personal
circumstances. I have noted that it is about five years now
that they
have been in custody following numerous remands in this case.

Accused
have however not testified in mitigation except for their Counsel's
statements from the bar. Al and A3 are married and they
have
children. I would instantly note on the other hand that the Deceased
did have had children. She has permanently been lost
to her children.
They will be without her support and she will not come back and her
life had been taken away unlawfully.

I have
furthermore been told that the Accused ask mercy and have shown
remorse. It is those Accused who have not testified under
oath. I
further been advised and it is urged in their favour that under
Sesotho customary law the Deceased's relatives will be
entitled to
claim for raising the head. I have also been informed that Al has
done Standard Eight, A2 has done Form B. I do not
know what the
difference is. A3 has not gone to school at all. I am told that I
must consider these factors in mitigation. The
Crown has impressed
upon me that the key thing to consider is that one I have spoken
about which is the lost life of the Deceased
to her children. The
life that will not come back and that has been taken away unlawfully,
I repeat.

55

I cannot
overemphasize the seriousness of what these Accused have done. May be
words like heinous, callous and other superlatives
can describe the
nature of this offence. There is some more significant observation
which goes with this finding. As this Court
is aware the situation in
this city which I take judicial notice of is that the villages from
which the Accused come are separate
and far apart although they
belong to this city or municipality. Indeed the Accused seem to come
from the different corners of
this city but they associated and
combined for unlawful purposes. This is again revealed in the
evidence. Onto this follows another
element which is most noteworthy.

The acts
of the Accused have the hallmark or signs of people who operate as
syndicates that are presently plaguing this country's
length and
breath. It is the numerous thefts and robberies in this city and in
this country widely. That is why when there are
remarks against the
allegedly hefty sentences that are to be found in Acts of Parliament
like Stock Theft Act 2002 and Motor Vehicle
Theft Act 2000 Parliament
defends itself by saying it cannot let the country be conquered by
thieves on innocent and helpless communities.
I agree that this seems
to be the situation that criminality seems to be taking over in this
country and that something must be
done with all the seriousness.

I agree
that I have to consider the aims of punishment as a matter of the
function and policy of the courts of this land. I must
look into the
value of imposing certain sentence as against others when paramount
is the protection of the society against the
crimes I have already
described as rampant. Of course protection of the

56

society
is one of the aims of the punishment while others are retribution,
deterrence, rehabilitation and reform.

These
aims of punishment are all important and overlap but in any given
situation one has to adopt one as against the others. When
I look at
these Accused I feel that the society has to be protected against
them. They must accordingly also be removed from the
community so
that the society shall become safe without them. I must not also look
at the interest of the society which must be
protected.

There is
on the other hand a victim which is the Deceased and her relatives,
the latter who must be salved and consoled of their
wounded feelings,
in the light the gravity and the brutality of the Accused's acts.
Most fortunately this aspect (of the victim)
is receiving serious and
urgent attention almost universally in policies and procedures on
Restorative Justice in Criminal Justice
systems of most countries.

As I have
already commented a paramount consideration should also be the
prevalence of those crimes. I have already said that this
criminality
is nation wide. It is therefore the role of the Courts to be seen to
be protecting the society. At the same time the
society protects
itself through the courts. Then the Courts will be defending their
reputation as defenders of the nation in the
courts public duty,
social responsibility and accountability. It is therefore necessary
to say that:

"For its part, society has the moral right, and the duty, to
punish the guilty. It has the right to punish because the integrity

of its moral order has been violated, it has the duty to punish
because not to do so negates the very idea of crime and render
moral
responsibility meaningless." (My emphasis

57

Quoted
from page 17 of Criminological Pre-Sentencing Evaluation (Jacobus
Michiel du Plooy) by Dr Irma Louise Labuschagre (Forensic

Criminologist) in Rex v Jacob Michael du Plooy, CRI/T/111/99, 17th
September 2003.

One of
the ways in which the society protects itself through the courts of
the land is to send prisoners convicted of serious crimes
to long
terms of imprisonment when punishment by death is not seen as an
option. In discussing the failures of imprisonment - as
shown by high
rates of recidivism which has other causes including hardening of
criminal behaviour and bad learning experiences
in prison itself,
overcrowding, decease, violence on fellow inmates, and other forms of
victimization -the author of Criminological
Pre-sentencing Evaluation
(supra) on page 18 thereof confesses (for absence of a better word)
that imprisonment remains a viable
option dispute indiscriminate (in
the Republic of South Africa) release of prisons through the back
door and other problems occasioned
by those deleterious effects of
imprisonment by saying:

"Should not judges, weighing which offenders pose the most
serious threat to public safety, decide on who should be incarcerated

and for how long, rather than leaving it to the pressure of
correctional overload." (My emphasis)

I have to
take into account that (in their favour) the Accused are first
offenders. Even if I have considered that I must balance
as against
the fact that they have committed a serious offence. There are other
consideration which I need not detail and which
should not influence
me for the purpose of this case.

58

The Court
has also considered things that have to do with the separate acts of
these Accused when they committed these crimes which
I have dealt
with in my judgment. These I have to revisit. On the scene Al seemed
to have been commanding the activities. A2 is
that one who kicked Pw4
on the face. A3 is that one who actually shot Deceased in order to
silence her.

The above
distinctions do not however make a difference in my mind. When one
considers that even if it is A3 who shot all Accused
must have been
aware that he was along the line or likely by reason of possession of
the gun to use the gun. That is why we do
not have recorded in this
proceedings that anyone of them registered a protest of any kind
against A3's shooting. For example,
if one had said: "Why do you
now shoot" or such like.

The
effect of above would have been that that the one who complained had
not been of the same mind with the person who shot. That
is why in
the case of Sello Lemphane and Another V Rex 1980(1) LLR 57 (C of A)
one of the accused escaped a serious conviction
and/or a sentence of
death because he remarked as to why the other co-accused "killed
a person so cruelly". The Court
consequently judged that he had
not been of the same mind with that other one who had fatally tied
the victim with a wire on the
neck.

Accused
please stand up. I sentence you to a term of imprisonment of twenty
years. Do you understand? Sit down.

59

About the
exhibits I order that the Berreta gun is forfeited by the State to be
destroyed. The bayonet is also to be destroyed.
The Smith and Wesson
gun shall be given back to Lesotho Mounted Police Service who are its
owner. All the items exhibits which
had been proved to belong to Pw4
or to have belonged to the Deceased shall be given back to Pw4 or to
Deceased's relatives respectively.
Any one of the Accused who was
claiming that "Seanamarena" blanket as his, I give him
thirty days within which to claim
that blanket. If not that blanket
will go to the Deceased's family.

The
Accomplice Tholang Tlebere (Pw3) has given evidence satisfactorily.
He is therefore declared immune from any future prosecution
regarding
these crimes subject of the charge.

Gentlemen
Assessors, Mr Penane and Mr Motsamai I give special thanks to you.
Without you I would have not been able to go through
this case with
ease availed me by your efforts because it had special problems. It
was taxing on my patience and it had many other
problems. I believe
you understand and appreciate this.

All
Accused are sentenced to terms of imprisonment of twenty years each.

T.
Monapathi

Judge

LIST OF
RULINGS

1. 29th
   April - 2003 Application for discharge of Accused at the end of
   Crown case.

   
   

2. Discharge
   of A4 on the 26th November 2003.